Analysis | Rabone and the rights to life of voluntary mental health patients – Part 2/2

In my previous blog on the Supreme Court’s judgment in Rabone I discussed the central feature of the case, the extension of the operational duty on the state to protect specific individuals from threats to their life, including suicide. Here, I consider the other elements of the case that Melanie Rabone’s parents had to establish in order to succeed in their claim for damages under the Human Rights Act 1998 (“HRA”).

Existence of the operational duty in Melanie’s case

Having established that the operational duty could be applied in Melanie’s case, her parents then had to establish, on the facts, that it was – by showing that there was a “real and immediate” threat to her life from which she should have been protected. Ever since the notion of an operational duty was first enunciated in Osman v United Kingdom (2000) 29 EHRR 245, it has become something of a judicial mantra that the threshold for establishing a “real and immediate” threat was high (see for example Re Officer L[2007] UKHL 36, and Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 [41] and [66],). There are good reasons for not imposing the operational duty lightly, given the enormous pressures and complexities involved in running police, prison and mental health services for the community as a whole. However, an overly-stringent test risked making the operational duty an obligation that was more hypothetical than real.

One of the most interesting aspects to the Supreme Court’s decision in Rabone is the way in which it has relaxed the test for finding a “real and immediate” threat. In respect of the former, they found that in Melanie’s case a risk assessed by experts as being either “low to moderate (but nevertheless, significant)”, or of having 5% to 10% chance of eventuating, was “real”. It was, Lord Dyson said, a “substantial or significant risk and not a remote or fanciful one” [38]. The juxtaposition of “real” with “remote or fanciful” is a common one in the domestic civil law, where it is recognised as being a low threshold to cross. In terms of immediacy, Lord Dyson rejected attempts to import a test of the risk being “imminent”. He expressed caution about using other words to explain the meaning of an ordinary word like “immediate”, but also found some help in Lord Carswell’s view in re Officer L that an immediate risk was one that was “present and continuing” [39-43].

The risk to Melanie was present when she left hospital, and continued until she killed herself. He concluded – and his colleagues agreed – that for these reasons there was a “real and immediate” risk to Melanie, and hence the authorities owed her an Article 2 operational duty to take reasonable steps to protect her from that risk. This aspect of the judgment – and in particular its reliance on the proper meaning of everyday words – is particularly welcome.

Breach of the operational duty

Next, the Court had to consider whether the Defendant had failed to take the reasonable steps that it should have done, and hence was in breach of its duty. It will be remembered that the Defendant had admitted negligence in respect of the civil claim, but it continued to argue that the test for a breach of Article 2 was higher and had not been met in this case. Lord Dyson firmly rejected the Defendant’s attempt to import the concept of a “margin of discretion” that went beyond the law of negligence.

Instead he found that: “the standard demanded for performance of the operational duty is one of reasonableness”, and in the present case – where it had been admitted that no reasonable psychiatric practitioner would have allowed Melanie to go home for two days – the Defendant had failed to meet that standard [43]. Lady Hale agreed that the operational duty had been breached in Melanie’s case, but was equivocal as to whether the test of negligence (as applied by Lord Dyson), would always be analogous to the correct test for a breach of the operational duty [107]. It is fair to say that this issue will arise again in the future, but the logic of Lord Dyson’s argument will be hard to displace.

“Victim” status

By this stage, the Court had established that Melanie’s Article 2 rights had been breached by the Defendant. It then turned to more procedural aspects – namely whether her parents could bring an action to vindicate those rights and receive damages. (It is important to note that there is no suggestion that Melanie’s parents were financially motivated in bringing this claim and, as is discussed below, much to suggest that they were not.)

Section 7(1) of the HRA provides that the person bringing a claim for breach of a Convention right must be a “victim”. This is a notion that is derived from Article 34 of the Convention, and the HRA – at s.7(7) – directly links the domestic interpretation of who is and who is not a “victim” to the (extensive) Strasbourg jurisprudence on this point. It is abundantly clear from this jurisprudence that parents can be “victims” under Article 34, and hence also under section 7 HRA, and the Justices wasted little time in determining that Mr and Mrs Rabone met this requirement to bring their claim [44-48; 92].

In coming to this conclusion, the Justices bluntly rejected the obiter observations of Lord Scott in Savage [5], in which he expressed the view that the domestic law had established categories of those who could and could not seek financial compensation for a death, and that it was no function of Article 2 to add to these. The categories to which Lord Scott was referring were the financial dependents of the deceased, the deceased’s spouse and the deceased’s estate – hence not a sibling or parent unless they fell into one of those groups.

These comments wholly ignore s.7 of the HRA, by which Parliament expressly widened the possible range of claimants in HRA claims, and it is unsurprising that the Supreme Court took the opportunity to correct any misapprehension on this point. Lady Hale, who sat with Lord Scott in Savage, did so in forthright terms unlikely to warm judicial relations: “There is no warrant, in the jurisprudence or in humanity, for the distinction … drawn by Lord Scott” [92].

The effect of accepting a settlement in a civil claim

One of the most interesting procedural aspects of the case was the effect – if any – on Mr and Mrs Rabone’s claim under the HRA of their earlier settlement of a civil claim that they had brought against the Defendant. As is explained in Part 1 of this blog the Defendant, having admitted negligence, agreed a settlement of £7,500 under the Law Reform (Miscellaneous Provisions) Act 1934. Did this, the Court asked, rob Melanie’s parents of their “victim” status?

The unanimous answer was “No”. Lord Dyson’s judgment on this point noted that there were two elements to be considered: first, had the Defendant made “adequate redress”, and second, had it acknowledged its breach of Article 2? Only if it had done both would the Rabone’s lose their “victim” status, on the basis that they had already received that to which they were entitled for the breach [49].

Considering the first of these matters, Lord Dyson found that it made a critical difference that the claim that was settled was with Melanie’s estate (for funeral expenses and Melanie’s pain and suffering in the moments before her death) [50-58]. Although Mr Rabone was the administrator of that estate the settlement was not with him personally, and was not compensating him or his wife for their loss. This loss was one that the domestic law did not (until this case) recognise. However, the Justices held that Mr and Mrs Rabone were themselves victims of a breach of the Convention, and that no recompense had been given to them. The argument that the £7,500 settlement was adequate redress in some broader, less formal or legalistic sense, was considered but rejected [62].

As there had been no adequate redress the Rabones retained their “victim” status for the purposes of the claim. However, Lord Dyson went on to consider whether the Defendant’s failure to expressly acknowledge a breach of Article 2 could, on its own, have been used as a basis for maintaining the claim. He held that in this case it could not as the Trust’s clear acceptance that its errors had led to Melanie’s death was sufficient to amount to an admission “in substance” of a breach of Article 2 [64-72].

Limitation

The next issue to be discussed was that of limitation. Section 7(5) of the HRA sets a general time limit of one year in which to bring a claim under the Act, but allows a court a wide discretion to allow a longer period. The Rabones issued their claim some 16 months after Melanie’s death, and thus had to persuade the various courts that heard the case that their claim should not be rejected as out of time.

Simon J at first instance and the Court of Appeal both held that the one year time limit should not be extended, but they did so only after considering the claim in full and assessing that it was doomed. In essence, their decision on limitation followed their decision on the merits of the case. The Supreme Court, having overturned the previous reasoning on the existence and breach of the Article 2 duty, inevitably reversed the decision on limitation. In doing so, the Justices sought to outline some wider principles that might assist in other cases.

First, Lord Dyson noted that the factors listed in s.33(3) of the Limitation Act 1980 for consideration when ruling on applications for time extensions in common law cases will “often be appropriate” when considering s.7(5) of the HRA. However, he expressly rejected the idea that the HRA should be read as if it contained the wording of s.33(3). The discretion in s.7(5) was phrased differently and should be interpreted according to its own terms [73].

Second, Lady Hale noted that the Rabones’ case was closer in its nature to a tort claim (three year limitation period) to a judicial review (3 month limit) [107]. Finally, Lord Dyson noted the features in the present case that informed his decision to extend time: the extension period required was short; the Defendant had suffered no prejudice by the delay; the Rabones had acted reasonably in delaying issuing (and had done so in part at the request of the Defendant); and they had a good claim for a breach of Article 2 [79]. It is hard to escape the impression that the last of these was – and usually will be – the dominant factor.

Quantum

At first instance, Simon J had held that had he found for the Rabones he would have awarded them £1,500 each. The Court of Appeal raised this figure to £5,000 each (while still holding that their claim did not succeed). The Defendant appealed against this aspect of the Court of Appeal’s judgment; the Rabones did not argue that they should have been awarded more (a further sign, if any was needed, that this was not a case about the money).

The Supreme Court held, unanimously, that the Defendant’s appeal should be rejected. Lord Dyson gave a strong indication that he would have awarded more had the Rabones cross-appealed, particularly in light of their close family ties, the anxiety they expressed to the hospital about Melanie being released, and the fact that their very fears were realised [88]. It will be noted that the sum of damages is low, in effect nominal. This is in keeping with the Strasbourg jurisprudence.

The Relationship Between Domestic Courts and Strasbourg

The Justices in Rabone recognised that their decision was going beyond the existing Strasbourg jurisprudence, which has not considered whether the operational duty could extend even to a detained mental health patient, let alone a voluntary one. None of the Justices expressed any concern about this situation. Lord Brown analysed the position in light of the principles that Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323 [20] felt should be considered by domestic courts before they found that the Convention imposed a duty on a public authority that Strasbourg had not yet identified.

First, bearing in mind that a public authority does not have the opportunity to take its case to the European Court, the domestic courts should not be hurried into coming to such a conclusion and should only do so where they consider that the existing Strasbourg case law compels it.

Second, while a Court could extend the common law beyond the rights of the Convention, it should not do so in a way that could not be reasonably envisaged by the existing ECHR jurisprudence. Both limbs of the Ullah principle recognise that it is for Strasbourg alone definitively to interpret the Convention. In the present case, Lord Brown held that neither principle was offended.

Two other observations are particularly worthy of note. First is Lord Dyson’s observation on the way in which the scope of the operational duty under Article 2 had expanded. It was, he said, unsurprising that the boundaries of a young jurisprudence were still being explored, incrementally and on a case-by-case basis; this was, after all, the way in which the common law of negligence had developed [25].

The second matter concerns the occasional flashes of irritation among the Justices about the sometimes opaque and contradictory case law of the Strasbourg Court, particularly on the issue of adequate address [57, 97, 118, 124]. Lord Mance politely suggested that something may be lost in translation, in that the decision of the Strasbourg Court, “may not respond well to the same close linguistic analysis that a common lawyer would give to a binding precedent” [123]. This is no doubt true, but it does not help much when trying to deduce and apply scope of the Convention. It also an observation that does not sit easily with the European Court’s self-imposed practice of prefacing its judgments with a Gregorian chant of previously decided cases and principles.

Conclusion

Rabone provides a welcome series of developments and explanations on the scope of Article 2, and the procedural rules around bringing HRA claims. It is true that it has expanded the Convention duties owed by public authorities (particularly hospitals dealing with mental health patients), and that it has done so both in theory and in practice. It is also true that it has expanded the category of those who can obtain damages for the death of a loved one, correcting a rather harsh anomaly of the tort law.

However, no floodgates will be opened. The quantum of any future awards under the HRA will be low. There is unlikely to be a glut of previously non-litigable cases in which the operational duty has been breached, and even if there was this would be an important indication of an underlying problem that needed to be addressed. There is no difficulty in the domestic law going beyond Strasbourg in interpreting the operational duty under Article 2.

In many other areas common law protections are considerably more robust than those provided by Strasbourg. Indeed, at a time when the relationship between the European Court and domestic judges and legislators is under critical scrutiny, Lord Dyson’s judgment in Rabone stands as an example of how a mutually beneficial and informed dialogue can be achieved. He and his colleagues deduced the principles in the Strasbourg jurisprudence, considered how they worked in practice, and applied them to do justice in the case before them.

But any satisfaction a lawyer may take from this outcome must be checked by remembering the tragic facts behind the proceedings, and the seven years that it took for Melanie’s parents to have their rights, and those of their daughter, recognised.

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This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.